Constitutionality of RIAA Lawsuits Being Challenged

Joel Tennenbaum is currently being sued by the RIAA for having 7 songs in a shared folder when he was 17 years old. Tennenbaum is now in his 3rd year of graduate school. The RIAA is asking for damages amounting to more than $1,000,000.

Charlie Nesson is representing Tennenbaum and challenging the constitutionality of such lawsuits in the hope of stopping any similar lawsuits in the future. If successful, individuals who have shared music in a personal, noncommercial fashion could no longer be targets in the RIAA's sights.

Nesson and Tennenbaum were interviewed by David Weinberger, Harvard law professor, yesterday. Nesson lays out the grounds on which the lawsuits are being challenged. He makes the comparison between file-sharers today and radio broadcasters in the '50s; both individuals engaged in a similar activity -- sharing music for free. The difference, Nesson points out, is that the broadcasters were given payola, while file-sharers are sued ridiculous amounts of money. He also states that the RIAA's tactics are constitutional because they are a private company using the federal court system to enforce civil lawsuits through coercion, threats, and fear, amounting to extortion tactics.

Both Nesson and Tennenbaum recognize and articulate the concept that the music industry has decided to fight against file-sharing and digital technology in order to continue using their old business model rather than embrace these new technological and cultural changes by adopting a new business model.

I'll be watching their case to see how it develops.

Muxtape Reimagined

The most interesting thing about Justin Ouellette's revealing post regarding the RIAA's take down of Muxtape is how the RIAA acted independently of the labels that the organization represents.

Over the next week I learned a little more, mainly that the RIAA moves quite autonomously from their label parents and that the understanding I had with them didn’t necessarily carry over.

As Ouellete points out, the labels understood the inherent value of Muxtape -- viral marketing and mouth-to-mouth promotion of music, which creates a consumer generated community organized in a central location on the internet. The fact that the RIAA moved autonomously of the labels signifies that the organization does not understand the cultural value its content has for consumers, and instead views this content as nothing more than "product."

This fundamental misunderstanding is also evident in their ongoing anti-piracy campaign against 12-year-old kids and grandmothers. Not only is such a campaign doomed to failure, but the industry is targeting its best costumers. The only such case to go to trial, Capitol Records v. Jammie Thomas, awarded damages of $222,000 to record labels. Thomas had shared 24 songs on Kazaa, a once popular peer-to-peer network. The ruling has been challenged, the punishment criticized as unfair, and the judge in the case has expressed doubts about the court's decision. The really interesting part about this case is the RIAA's efforts to solidify "attempted copyright infringement" into law. The RIAA doesn't understand that the "product" is much more than a cut of wax, a wound up analog tape, a plastic disc, or a series of digital bits to fans.

The emotional connection that people have with music goes back far in history, before copyright law and "intellectual property." Music transcends boundaries in ways that other mediums cannot. People have "played" with their culture continually throughout human history -- through sharing, modifying, or creating new works from existing works. The recent extension of copyright term limits has cut off people from these previously exercised abilities just at the same time that technology makes it easier to do so.

Muxtape served this emotional purpose well -- music fans were able to share their favorite songs to any interested party like never before. And on the business side of things, Muxtape provided the best possible form of promotion -- mouth-to-mouth advertising. People are more likely to make a purchased based on the recommendation of a real person, friend or stranger, than from record label advertisements on glossy magazine pages. All that potential, wasted. As I have said before, the RIAA is only hurting their own industry with these actions.

I think Muxtape will demonstrate the positives of sharing music through its new focus on the band feature. I find it unfortunate that Ouellette didn't try to reach out to independent labels exclusively and strike licensing deals while also barring major label participation. I think that such an action could have the effect of showing major labels that repressing people's natural desire to share will only hurt their businesses, while also helping out smaller labels experience more recognition and (hopefully) increased sales for their artists. (I'm confident that sales would increase; however, there's little solid data surrounding this issue. This could have been a great test case.) Perhaps this will occur anyway through the band feature. Only time will tell.

Muxtape Is Back! Sort of...

Muxtape has an explanation for the RIAA take down in August, posted today:

[O]n August 15th, I received notice from Amazon Web Services (the platform that hosts Muxtape’s servers and files) that they had received a complaint from the RIAA. Per Amazon’s terms, I had one business day to remove an incredibly long list of songs or face having my servers shut down and data deleted. This came as a big surprise to me, as I’d been thinking that I hadn’t heard from the RIAA in a long time because I had an understanding with the labels. I had a panicked exchange of emails with Amazon, trying to explain that I was in the middle of a licensing deal, that I suspected it was a clerical error, and that I was doing everything I could to get someone to vouch for me on a summer Friday afternoon. My one business day extended over the weekend, and on Monday when I wasn’t able to produce the documentation Amazon wanted (or even get someone from the RIAA on the phone), the servers were shut down and I was locked out of the account. I moved the domain name to a new server with a short message and the very real expectation that I could get it sorted out. I still thought it was all just a big mistake. I was wrong.

Over the next week I learned a little more, mainly that the RIAA moves quite autonomously from their label parents and that the understanding I had with them didn’t necessarily carry over. I also learned that none of the labels were especially interested in helping me out, and from their perspective it had no bearing on the negotiations. I disagreed. The deals were still weeks or months away (an eternity on the internet) meaning that at best, Muxtape was going to be down until the end of year. There was also still the matter of how to pay for it; getting investment is hard enough in this volatile space even with a wildly successful and growing web site, it became an entirely different proposition with no web site at all.

And so I made one of the hardest decisions I’ve ever faced: I walked away from the licensing deals. They had become too complex for a site founded on simplicity, too restrictive and hostile to continue to innovate the way I wanted to. They’d already taken so much attention away from development that I started to question my own motivations. I didn’t get into this to build a big company as fast as I could no matter what the cost, I got into this to make something simple and beautiful for people who love music, and I plan to continue doing that. As promised, the site is coming back, but not as you’ve known. I’m taking a feature that was in development in the early stages and making it the new central focus.

Muxtape is relaunching as a service exclusively for bands, offering an extremely powerful platform with unheard-of simplicity for artists to thrive on the internet. Musicians in 2008 without access to a full time web developer have few options when it comes to establishing themselves online, but their needs often revolve around a common set of problems. The new Muxtape will allow bands to upload their own music and offer an embeddable player that works anywhere on the web, in addition to the original muxtape format. Bands will be able to assemble an attractive profile with simple modules that enable optional functionality such as a calendar, photos, comments, downloads and sales, or anything else they need. The system has been built from the ground up to be extended infinitely and is wrapped in a template system that will be open to CSS designers. There will be more details soon. The beta is still private at the moment, but that will change in the coming weeks.

[...]

I'll post my thoughts after I've had some time to think about everything involved. But perhaps this will give me the motivation to get off my ass and write some new songs...

Aw Fuck...

Muxtape is down. The website's blog says that no artists or labels complained. I hope that Muxtape can come out of this unscathed.

I really feel that the RIAA is overreaching here. This broadening copyright enforcement nonsense is quickly becoming ridiculous. As I have said before, how is Muxtape really that much different from radio? To make another analogy, isn't a website like Muxtape just the piano roll of our times?

Muxtape is merely a digital version of cassette mixtapes. Muxtape has taken pains to ensure that songs cannot be downloaded, that songs are accompanied with a link to Amazon's mp3 page, and that tapes have a variety of song selections (no tracks from the same artist/release on the same tape).

The fact that it is digital shouldn't make any difference, but the fact that it does means that the RIAA is still living in analog fantasy land.

[UPDATE]: The RIAA has released a statement regarding Muxtape:

For the past several months, we have communicated our legal concerns with the site and repeatedly tried to work with them to have illegal content taken down. Muxtape was hosting copies of copyrighted sound recordings without authorization from the copyright owners. Making these recordings available for streaming playback also requires authorization from the copyright owners. Muxtape has not obtained authorization from our member companies to host or stream copies of their sound recordings.

[UPDATE 2]: Ars Technica reports that Muxtape's future is likely grim:

Actually, it looks like Muxtape may indeed be closed indefinitely. The RIAA says it has been in communication with the site over the past several months over the getting the "illegal content" taken down. In order to get the RIAA's official blessing, Muxtape would likely have to sign a licensing agreement and begin paying royalties à la last.fm and Pandora. An agreement would dissipate the legal gray cloud hanging over Muxtape, but the royalty burden may well prove onerous, as industry stalwarts like Pandora are considering closing up shop due to the high royalty rates demanded by rightsholders.

Damn.

Another Reason the RIAA Doesn't Get It

I just discovered that Nothing Nice to Say came back a number of years ago (I had stopped reading the comic after I thought it had ended), and I came across this gem:

Poor Consumer Choice Drives Rampant File Sharing Online

TorrentFreak has a great post up today about a new study from UK based Entertainment Media Research titled, "2008 Digital Entertainment Survey." The report states on page 209:

Pirates perceive legal sites don't have the range of content of illegal ones (70%) and take longer to acquire content (68%). That it is free is, of course, the main reason why piracy is so rife but perceptions of a lack of choice in legal sites is a contributory factor.

The claim about content being free as the primary motivator is an assumption on part of the researchers, and they make no attempt to support that claim. And considering the next paragraph on page 209, the researchers actually discredit their claim:

Pirates are typically media heavy consumers and purchase considerable quantities of legal content in addition to unauthorised content. Nearly 2 out of 3 pirates claim they would pay for legal downloads if what they wanted was available.

So, users of peer-to-peer file sharing systems are actually the industry's best customers. 67% of these individuals would be willing to pay for the content that they seek if it were available through legal means. I think that hardly qualifies the fact that current content on peer-to-peer systems is free as the primary reason for its popularity.

I'd bet that the "contributory factor" of lack of choice is probably more influential than content providers would like to think.

Finally, on page 13 of the report there is the evidence that 7 out of 10 peer-to-peer system users would stop using peer-to-peer file sharing if they were to receive a cease and desist letter from their ISP. In fact, the report even encourages the further use of such scare tactics:

All of this makes a more direct ISP warning strategy more attractive to discourage digital piracy. [emphasis in original]

The report states that teenagers are most likely to be persuaded by such tactics (78% of males and 75% of females), which isn't surprising because I think teenagers are most likely to be influenced by perceived authority figures like an ISP.

Judging by this, I think it's probable that the misinformation scare campaigns from the RIAA and the MPAA are likely to continue or even get worse. It's unfortunate that these organizations insist on criminalizing their best customers at the detriment of their own bottom line. If copyright holders simply provided services that customers want -- DRM free, easily accessible content for a reasonable price -- then it seems that they'd have a large share of peer-to-peer users who'd prefer to purchase content through legal means.

Vinyl Is Back!

I'm a little late to this, but Wired magazine wrote on October 29, 2007 that vinyl is on the rise. They even reported that Amazon.com has created a vinyl section on its website! Good news indeed -- although I doubt that Amazon will have the kind of records I enjoy, at least I can now put music back on my wishlist.

What did the record industry have to say about this? The typical bullshit:

"Our numbers, at least, don't really point to a resurgence," said Jonathan Lamy, the Recording Industry Association of America's director of communications. Likewise, Nielsen SoundScan, which registered a slight increase in vinyl sales last year, nonetheless showed a 43 percent decrease between 2000 and 2006.

I'll bet that the record industry wants to play down this growing trend of vinyl enthusiasts because the major record labels have invested a lot of money in the production and promotion of CDs, and that's not something they want to just throw away. This highlights the major record labels inability to keep up with new music and trends. Their business model just isn't suited to be that nimble.

And Wired does explain why the RIAA numbers are way off:

But when it comes to vinyl, these organizations don't really know what they're talking about. The RIAA's numbers are misleading because its member labels are only now beginning to react to the growing demand for vinyl. As for SoundScan, its numbers don't include many of the small indie and dance shops where records are sold. More importantly, neither organization tracks used records sold at stores or on eBay -- arguably the central clearinghouse for vinyl worldwide.

eBay.com is possibly the greatest site ever. Through eBay I've found most of my best and favorite records at, usually, reasonably prices (I still think $76 dollars for No Trend's 1984 Too Many Humans was a good deal! Really!) Just yesterday, I found Sightings' debut 7" and the Violent Ramp 7" -- pre-Wolf Eyes noise rock -- on eBay for "buy it now"! Of course, I scooped those right up.

Wired also writes that "the vinyl-MP3 tag team might just hasten the long-predicted death of the CD." As I've written before, Polyvinyl Records has already started offering a free mp3 download of any release purchased on vinyl. Here's to hoping that this practice becomes the norm -- ripping my entire vinyl collection to mp3 will be quite the daunting task!

Music is a Dinosaur

Today, I read in The Washington Monthly that record companies are continuing to see CD sales drop. The discussion in the comments section is rather interesting too. While the RIAA continues to blame internet privacy of mp3s as the cause of their woes, many others have pointed out the fact that the RIAA fought tooth and nail to avoid adapting a new business model to include digital music files -- thus leading to their current crisis.

Others still have pointed to the fact that music today generally sucks... but I think that it can be argued that the pop music of any era generally sucked, with a few notable exceptions here and there. One comment suggested that artists today have to compete with almost 100 years of back catalog, which has created the appearance of no new music in pop. I tend to agree with this last point -- today, the music scene has been flooded with musical acts that lead nowhere, or that have virtually nothing interesting to add. It's much more difficult these days for an unknown band to get recognition, simply because there's so much out there already. And, as Steve Albini has pointed out, major labels exploit bands in ways that carve their short life-spans into stone before the first record contract is even signed.

I think the current trends in music and music consumption will lead to the complete destruction of the music industry, and there's no amount of copyright law that can prevent this collapse. Many in the youngest generation have been accustomed to getting their music fix for free. The album format appears to be on its way out, as music lovers continually complain about CDs having one or two good songs and the rest being filler. Additionally, as more people download music from places like iTunes, they are searching for individual songs instead of entire albums. Music is less about holding a physical copy in your own hands than about cramming an iPod with 80 gigabytes worth of music, which is more than enough music for one person to listen to completely in any reasonable amount of time. People may also feel that they have so much music already that there is no reason to go out and pay for more -- and on top of that, the latest musical acts are a lot less than even marginally tolerable.

Then you have this flood of amateur acts, which isn't necessarily a bad thing in-and-of itself. But this over-saturation of the market will bring down the value of music for the average consumer. Why would someone pay $20 for a CD of a mediocre pop act when they can log onto MySpace and check out hundreds of DIY bands for free? I think the trend is clear -- we're moving away from amassing physical copies of music. We're going into an over-saturation of the amount of choice available, which is now collected digitally.

So I propose something radical: stop selling music. Fuck record labels. Don't even create a physical product. Play shows, write songs, but don't bother trying to cement ownership into a physical recreation. At this point, I think that's futile. Instead of trying to claim ownership, just create music -- not to make a living, but to destroy the fucking culture.